Everything is and always has been up for debate, most especially Congressional powers.

Dear Readers,

Today’s newsletter outlines the enumerated and implied powers of Congress, as well as the Constitutional prohibitions and limitations on its power. As I discussed in the last newsletter, Congress’s power is accordion-like, consistently expanding and contracting depending on the make-up of Congress and the Supreme Court of the U.S. (SCOTUS). Everything is and always has been up for debate, most especially Congressional powers.

What enumerated powers does Congress have?

Enumerated powers are those powers that are explicitly named in the Constitution. In Article 1 of the Constitution, the drafters gave full legislative power to a bicameral Congress. Congress is vested with the power to create legislation affecting the most essential aspects of running a nation.1 Section 8 of that Article delineates Congress’s power to legislate in the following eighteen areas:

  1. Tax and Spend (Lay down taxes and allocate funds)

  2. Borrow Money

  3. Regulate Commerce (this is an extensive topic and will be discussed to a greater degree in the next newsletter)

  4. Naturalization Rules (i.e. immigration)

  5. Bankruptcy Rules

  6. Coin Money (i.e. currency)

  7. Punishments for Counterfeiting

  8. Establish Post Offices

  9. Patents and Copyrights

  10. Establish Lower Courts (meaning all federal courts that are not SCOTUS)

  11. Maritime Crimes (“define and punish Piracies and Felonies committed on the high seas,” and to punish universally recognized offences under international law) 

  12. Declare War

  13. Raise and Support Armies

  14. Provide and Maintain a Navy

  15. Rules for the Military

  16. Call Forth Militias (in modern times, this is the National Guard2)

  17. Organize Militias

  18. Rules for the Capitol (governance of the District of Columbia)

These are the enumerated powers of Congress.

What implied powers does Congress have?

Implied powers are those that are not explicitly named in the Constitution, but are necessary for Congress to carry out its duties. The implied powers of Congress come from Article 1, Section 8, Clause 18: the Necessary and Proper Clause, also known as the elastic clause. Some scholars posit that it may be the most important clause in the Constitution; it is certainly one of the most debated.3

The Necessary and Proper Clause gives Congress the power:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

To summarize: This clause gives Congress the power to make laws that help it effectively exercise the eighteen enumerated powers delineated in the Constitution, as well as any other powers vested by the Constitution to the federal government. 

For example: Article I, Section 8, Clause 7 authorizes Congress “[t]o establish Post Offices and post roads.” This clause implies that the post offices and post roads would be used to safely to reliably deliver mail. As such, there is a rational basis for Congress to pass a law making it a crime to tamper with or steal the mail because it impacts effective mail delivery. The criminal law, then, is a necessary means for Congress to execute its enumerated power.

However (I am sure you know what I am going to say next), the meaning and application of this clause, particularly the three bolded segments, have been hotly debated since at least 1819, when SCOTUS heard McCulloch v. Maryland4, the seminal case on Congressional powers.


McCulloch v. Maryland

The facts: The Federal Government created a national bank and opened a branch of that bank in Maryland. Maryland did not like or want the bank so the legislature passed a law to tax the national bank. McCulloch, the clerk of the Maryland branch of the national bank, refused to pay the tax and Maryland threatened to sue. The parties ended up in court and the rest is history.

By 1819, the Constitution and the new government had been in place for only thirty years. Many issues were still being fleshed out across the three branches of the Federal Government, as well as between the federal and states’ governments. Federalism, the Supremacy Clause, Congressional powers were all issues in this case, which is why it has become burned into the minds of every law student. But, McCulloch is an important case for all civic-minded people to know about because it is frequently referenced in current debates about the role and reach of the Federal Government. 

In McCulloch, SCOTUS ruled in favor of the Federal Government, holding that it was constitutional for it to create a national bank and, due to the Supremacy Clause, Maryland cannot take actions that lessen federal effort or negate federal power. Chief Justice Marshall, drafter of the opinion, asserted that the Constitution is a broad outline and does not enumerate every power that Congress has. It gives Congress the power of the purse and to raise armies, etc., thus it can be implied that the Constitution would also allow Congress to create a mechanism to effectively carry out those duties—a national bank.

Chief Justice John Marshall’s opinion gave Congress “very broad authority to determine what is ‘necessary’ for implementing federal powers.”5 He wrote: 

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consist with the letter and spirit of the constitution, are constitutional.6

Because of this case, Congress needs to show only “a ‘rational basis’ for connecting implementing means to legislative ends” for SCOTUS to find the legislation constitutional. In recent years, however, the nature, strength, and closeness of the relationship between the enumerated power and the enacted law has come back under scrutiny alongside heated federalism debates. I will dig into that more in the next edition. For more about the Necessary and Proper Clause, and its relationship to the states, check out this article.

Administrative Agencies

Another implied power of Congress is the formation of administrative agencies, specifically legislative agencies. The President has the power to create executive agencies (more on that in upcoming editions). Administrative agencies are “defined as official government bodies that have the power and authority to direct, supervise, and implement certain legislative acts or statutes.”7 

For frame of reference, legislative agencies include the Library of Congress, the Government Accountability Office, the Congressional Budget Office, and the U.S. Capitol Police. (For a complete list, click here.)

The Constitution did not mention anything about agencies, but “[e]xecutive agencies possessing delegated legislative authority have existed in the Anglo-American legal tradition at least since the 1530s.”8 Because of this long history, it is commonly accepted that Congress has the power to pass organic and/or enabling statutes to form the agencies, “establish broad aims desired by the legislature and create mechanisms for agencies to provide the details.”9 Justia provides a wonderful introduction to administrative agencies and administrative law, incredibly powerful and important sources of law in the U.S. Check it out here.

What can’t Congress do?

Article I, Section 9 sets forth the powers denied Congress. Additionally, the Bill of Rights, as discussed in previous newsletters, limits the actions of Congress. For example, the First Amendment states, “Congress shall make no law respecting an establishment of religion.”

Finally, the Tenth Amendment leaves to the States any powers not given to the Federal Government and not prohibited by the Constitution.10 (More on this topic when we shift focus to the states). An example of this is policing power. The Constitution does not vest Congress with policing powers, thus those powers are left to the states. Therefore, Congress can only make criminal laws that have a “rational basis” connection with an enumerated power. (More on this next week).

The Nondelegation Doctrine

Congress was vested with exclusive legislative authority by the Constitution. As such, Congress cannot delegate its legislative authority to other branches of government, such as administrative agencies, or private organizations. But, Congress may “obtain[] assistance from coordinate Branches”11 To do so, Congress must establish an “intelligible principle” of what it is tasking the agency with, and “the agency of the delegated authority must adhere to specific directives that govern its authority.”12

In other words, Congress cannot just create an agency and let it start legislating. Congress must provide a clear purpose and mission (“intelligible principle”) for the agency, creating parameters around what kinds of rules, regulations, and execution of laws it may undertake. Once formed, administrative agencies have the power to create regulations, which are a form of law, and they can adjudicate violations of those regulations. Leaders of these agencies are not directly elected but are appointed by Congress and/or the President or hired.

The nondelegation doctrine is another heavily debated area of law, including in the criminal legal field. There are many different perspectives and ideas about the scope and reach of the federal government, as well as how much power un-elected government officials should have in crafting legislation. To learn more about this issue, check out:

Article 1, Section 9

There are a number of clauses in this section, but I focus on the one that has the greatest impact on criminal law. Congress (as well as state legislatures) cannot pass bills of attainder or ex post facto laws. The idea was to promote transparency (among the white, free landholders invested, literally, in the future of the nascent U.S.) as to what conduct was unlawful, and to prevent the tyranny of random punishment at the whim of those in power (again, to protect landed, white men). In particular, those drafting the Constitution wanted to ensure that legislatures could not use their power to punish particular people and groups because of their political beliefs.  

Bills of Attainder

A bill of attainder, as defined by SCOTUS, is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.”13 In other words, Congress passes a law that declares the guilt of a person or peoples, denying that person the due process rights afforded in an adjudicatory process. Then, Congress punishes the person by prohibiting or demanding some action from her.

For example, in 1943, the House of Representatives passed a law that three employees of a federal agency could no longer receive their salaries because they were “subversives.”14 SCOTUS held that the statute “was designed to apply to particular individuals”15—the three agency employees. Additionally, the statute “‘operates as a legislative decree of perpetual exclusion’ from a chosen vocation” by declaring them “subversives,” and “thus, clearly accomplishes the punishment of named individuals without a judicial trial.”16 The statute was struck down as an unconstitutional bill of attainder.

In the last couple of years, bills of attainder returned to the spotlight when Congress passed a bill prohibiting the Federal Government from doing business with Chinese tech companies, Huawei and ZTE. The companies filed a complaint (the initiation of a civil lawsuit) against the U.S. government in federal district court claiming that the statute was a bill of attainder.17 The judge found in favor of the U.S., though certainly there are some interesting issues raised by this case. For more on this case, check out the articles in the footnote.18

Ex Post Facto Laws

Congress and state legislatures are also prohibited from passing ex post facto laws. Ex post facto laws “refer to a criminal statute that punishes actions retroactively, thereby criminalizing conduct that was legal when originally performed.”19 Additionally, these laws “increase[] the punishment for crimes already committed, or change[] the rules of procedure in force at the time an alleged crime was committed in a way substantially disadvantageous to the accused.”20 In other words, legislatures (and courts) cannot change the rules of the game midstream and apply it to what happened in the past when it would unfairly or further punish those impacted. 

Here’s a simple historical example: In 1865, Congress passed a law barring attorneys from becoming licensed to practice in federal court unless he (and it was uniformly “he” at that time) swore an oath of loyalty to the U.S., and later swore that he had not participated in a rebellion against the U.S. (i.e. that he was not part of the Confederacy).

SCOTUS, in the 1866 case Ex parte Garland21, declared that this statute was both a bill of attainder and ex post facto. A bill of attainder because it targeted for punishment a specific group of people without the opportunity to be heard in a court of law. Ex post facto because it punished people for past conduct that was not unlawful at the time.

Despite the historical example, ex post facto laws are still very much at issue in criminal law today, with life-altering consequences for those trapped in the criminal legal system. Examples of such issues include:

  • The Sex Offender Registration and Notification Act (SORNA)

  • Civil commitments to mental institutions following prison sentences

  • Rules of evidence changes (like who is allowed to testify and whose testimony matters more)

  • Change to parole laws, rules, and regulations.

Next week’s newsletter will delve into these issues in more depth. In the meantime, check out this Congressional Research Service explainer about ex post facto laws. It is a piece intended to educated elected officials so you can see what your representatives are receiving.

In Conclusion

This newsletter completes the two nuts-and-bolts editions about Congress. There is always more to talk about, but I focused on the areas that I think most impact criminal law and the criminal legal system. Of course, there will much more discussion on these issues in editions to come.

In the next edition, I will build on the foundation laid out in these two nuts-and-bolts newsletters with a discussion about SORNA. SORNA, a major issue in the criminal legal field, touches on federalism, nondelegation, ex post facto, Congressional power, and so much more. It is an interesting vehicle to help pull together the many threads of discussion from these last two weeks.

As ever, I welcome your feedback. These newsletters are to demystify and inform. Please let me know what is or is not working so I can make this into the most useful resource I can. 

Lastly, I ask that you share Is That Legal? with family, friends, colleagues, students, and anyone else you think might find this newsletter useful. Keep spreading the good word!

With gratitude,


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William N. Eskridge, Jr. and Neomi Rao, “Article 1, Section 1: General Principles,” National Constitution Center, located at:


Gary Lawson and Neil S. Siegel, “The Necessary and Proper Clause,” National Constitution Center, located at:


“Landmark Cases: Historic Supreme Court Decisions,” C-Span, located at:


Gary Lawson and Neil S. Siegel, “The Necessary and Proper Clause,” National Constitution Center, located at:


McCulloch v. Maryland, 17 U.S. 316 (1819), located at:


“Administrative Law,” Justia, located at:


“Administrative Law,” Sources of American Law, located at:




10th Amendment, National Constitution Center, located at:


Mistretta v. United States, Oyez, located at:




“Capitol Unrest, Legislative Response, and the Bill of Attainder Clause,” Congressional Research Service, located at: Bills of attainder typically involve a punishment of death for the legislatively manufactured crime. Bills of pains and penalties involve lesser punishment, like being fired and labeled as a subversive. Bills of pains and penalties are included under the umbrella of bills of attainder. See U.S. v. Lovett for more on this topic.


U.S. v. Lovett, 328 U.S. 303, 315 (1946), located at:






Wilson C. Freeman, “Huawei v. United States: The Bill of Attainder Clause and Huawei’s Lawsuit Against the United States,” Congressional Research Service, located at:


Steven Zable, “Huawei Technologies v. U.S.: Summary and Context,” Lawfare Blog, located at: Lyle Denniston, “Rediscovering the ancient ‘bill of attainder’,” National Constitution Center, located at: Evan Zoldan, “The Hidden Issue in Huawei’s Suit Against the United States,” Just Security, located at: “U.S. judge rejects Huawei challenge to federal law restricting its business,” Reuters, located at:

To read the decision by the federal judge, go to:


“Ex post facto,” Legal Information Institute, located at:


“Ex post facto,” Britannica, located at:


Ex parte Garland, 71 U.S. 333 (1866), located at: